EXHIBIT 10.9
AENEID CORPORATION
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is effective as of January 1,
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1999 by and between Xxxxxxxx X. Xxxxxx ("Employee") and Aeneid Corporation, a
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California corporation (the "Company").
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The parties hereby agree as follows:
1. Duties.
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(a) Position. Employee shall be employed as the Company's Vice
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President, Marketing and will report to the Company's Chief Executive Officer.
(b) Obligations to the Company. Employee agrees to the best of his
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ability and experience that he will at all times loyally and conscientiously
perform all of the duties and obligations required of and from Employee pursuant
to the terms hereof. During the term of Employee's employment relationship with
the Company, Employee further agrees that he will devote all of his business
time and attention to the business of the Company, the Company will be entitled
to all of the benefits and profits arising from or incident to all such work
services and advice, Employee will not render commercial or professional
services of any nature to any person or organization, whether or not for
compensation, without the prior written consent of the Company's Board of
Directors, and Employee will not directly or indirectly engage or participate in
any business that is competitive in any manner with the business of the Company.
Notwithstanding the foregoing, Employee may accept speaking or presentation
engagements in exchange for honoraria, may serve on boards of charitable
organizations, and may own 1% of the outstanding equity securities of a
corporation whose stock is listed on a national stock exchange or the Nasdaq
National Market. Employee will comply with and be bound by the Company's
operating policies, procedures and practices from time to time in effect during
the term of Employee's employment.
2. At-Will Employment. The Company and Employee acknowledge that
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Employee's employment shall be at-will, as defined under applicable law, and
that Employee's employment with the Company may be terminated by either party at
any time for any or no reason. If Employee's employment terminates for any
reason, Employee shall not be entitled to any payments, benefits, damages, award
or compensation other than as provided in this Agreement. The rights and duties
created by this Section 2 may not be modified in any way except by a written
agreement executed by Employee and a duly authorized officer of the Company.
3. Compensation. For the duties and services to be performed by Employee
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hereunder, the Company shall pay Employee, and Employee agrees to accept, the
salary and other benefits described below in this Section 3.
(a) Salary. Employee shall receive a monthly salary of $12,500,
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which is equivalent to $150,000 on an annualized basis. Employee's monthly
salary will be payable
pursuant to the Company's normal payroll practices. Employee's salary shall be
reviewed on at least an annual basis by the Company's Board of Directors.
(b) Bonus. Employee shall be eligible to receive an annual cash
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bonus of up to twenty percent (20%) of Employee's base salary. The payment and
amount of such bonus are discretionary and shall be determined by the Board of
Directors or its Compensation Committee in good faith based upon the extent to
which Employee's individual performance objectives and the Company's financial
and nonfinancial objectives are achieved during the applicable bonus period.
(c) Additional Benefits. Employee will be eligible to participate in
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the Company's employee benefit plans of general application, including without
limitation, those plans covering medical, disability and life insurance in
accordance with the rules established for individual participation in any such
plan and under applicable law. Employee will also receive such other benefits as
the Company generally provides to its other executive officers of comparable
position and experience.
(d) Reimbursement of Expenses. Employee shall be authorized to incur
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on behalf and for the benefit of, and shall be reimbursed by, the Company for
reasonable expenses, provided that such expenses are substantiated in accordance
with Company policies.
(e) Vacation. Employee shall be entitled to twenty-one (21) paid
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vacation days per year. Vacation days that are not used in one year shall not be
cashed out or carried over to subsequent years.
4. Termination of Employment and Severance Benefits.
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(a) Termination of Employment. This Agreement may be terminated at
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any time upon the occurrence of any of the following events:
(i) The Company's determination in good faith that it is
terminating Employee for Cause (as defined in Section 5 below) ("Termination for
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Cause");
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(ii) The Company's determination that it is terminating Employee
without Cause, which determination may be made by the Company at any time at the
Company's sole discretion, for any or no reason ("Termination Without Cause");
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(iii) The effective date of a written notice sent to the Company
from Employee (or an equivalent oral notification) stating that Employee is
electing to terminate his employment with the Company ("Voluntary Termination");
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(iv) A change in Employee's status such that a Constructive
Termination (as defined in Section 4(b)(iv) below) has occurred; or
(v) Following Employee's death or Disability (as defined in
Section 6 below).
(b) Severance Benefits. Employee shall be entitled to receive
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severance benefits upon termination of employment only as set forth in this
Section 4(b):
(i) Voluntary Termination. If Employee's employment terminates
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by Voluntary Termination, then Employee shall not be entitled to receive payment
of any severance benefits. Employee will receive payment(s) for all salary and
unpaid vacation accrued as of the date of Employee's termination of employment
and Employee's benefits will be continued under the Company's then existing
benefit plans and policies in accordance with such plans and policies in effect
on the date of termination and in accordance with applicable law.
(ii) Involuntary Termination. If Employee's employment is
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terminated under Section 4(a)(ii) or 4(a)(iv) above (such termination, an
"Involuntary Termination"), Employee will be entitled to receive payment of
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severance benefits equal to Employee's regular monthly salary for twelve (12)
months (the "Severance Period"). Such payments shall be made ratably over the
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Severance Period according to the Company's standard payroll schedule and
policies. Health insurance benefits with the same coverage provided to Employee
prior to the termination and in all other respects significantly comparable to
those in place immediately prior to the termination will be provided at the
Company's cost over the Severance Period.
(iii) Termination for Cause. If Employee's employment is
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terminated for Cause, then Employee shall not be entitled to receive payment of
any severance benefits. Employee will receive payment(s) for all salary and
unpaid vacation accrued as of the date of Employee's termination of employment
and Employee's benefits will be continued under the Company's then existing
benefit plans and policies in accordance with such plans and policies in effect
on the date of termination and in accordance with applicable law.
(iv) Constructive Termination. "Constructive Termination"
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shall be deemed to occur if: (A)(1) there is a material adverse change in
Employee's duties and responsibilities, causing Employee's position to be of
materially reduced stature or responsibility, (2) there is a reduction of more
than 20% of Employee's base compensation unless in connection with similar
decreases of other similarly situated employees of the Company, or (3) Employee
refuses to relocate to a facility or location more than 50 miles from the
Company's current location; and (B) within the 30-day period immediately
following such material change or reduction Employee elects to terminate his
employment voluntarily.
(v) Termination by Reason of Death or Disability. In the
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event that Employee's employment with the Company terminates as a result of
Employee's death or Disability (as defined in Section 6 below), Employee or
Employee's estate or representative will receive all salary and unpaid vacation
accrued as of the date of Employee's death or Disability and any other benefits
payable under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of death or
Disability and in accordance with applicable law.
5. Definition of Cause. For purposes of this Agreement, "Cause" for
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Employee's termination will exist at any time after the happening of one or more
of the following events:
(a) Employee's willful misconduct or gross negligence in performance
of his duties hereunder, including Employee's refusal to comply in any material
respect with the legal directives of the Company's Board of Directors so long as
such directives are not inconsistent with the Employee's position and duties,
and such refusal to comply is not remedied within 10 working days after written
notice from the Board of Directors, which written notice shall state that
failure to remedy such conduct may result in Termination for Cause;
(b) Employee's conviction of the commission of (i) a felony or (ii)
any crime or offense involving moral turpitude; or
(c) Employee's breach of any element of this Agreement or the
Company's Proprietary Information Agreement, which breach is not cured within
thirty (30) days following written notice of such breach from the Company.
6. Definition of Disability. For purposes of this Agreement,
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"Disability" shall mean that Employee has been unable to perform his duties
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hereunder as the result of his incapacity due to physical or mental illness, and
such inability, which continues for at least 120 consecutive calendar days or
150 calendar days during any consecutive twelve-month period, if shorter, after
its commencement; is determined to be total and permanent by a physician
selected by the Company and its insurers and acceptable to Employee or to
Employee's legal representative (with such agreement on acceptability not to be
unreasonably withheld).
7. Confidentiality Agreement. Employee has signed an Employee Proprietary
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Information Agreement with the Company (the "Confidentiality Agreement").
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Employee hereby represents and warrants to the Company that he has complied with
all obligations under the Confidentiality Agreement and agrees to continue to
abide by the terms of the Confidentiality Agreement and further agrees that the
provisions of the Confidentiality Agreement shall survive any termination of
this Agreement or of Employee's employment relationship with the Company.
8. Noncompetition Covenant. Employee hereby agrees that he shall not,
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during the term of his employment pursuant to this Agreement and the Severance
Period, if any, do any of the following without the prior written consent of the
Company's Board of Directors:
(a) Compete. Carry on any business or activity (whether directly or
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indirectly, as a partner, stockholder, principal, agent, director, affiliate,
employee or consultant) which is competitive with the business conducted by the
Company (as conducted now or during the term of Employee's employment), nor
engage in any other activities that conflict with Employee's obligations to the
Company.
(b) Solicit Business. Solicit or influence or attempt to influence
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any client, customer or other person either directly or indirectly, to direct
his or its purchase of the Company's products and/or services to any person,
firm, corporation, institution or other entity in competition with the business
of the Company.
(c) Solicit Personnel. During the term of this Agreement and for a
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period of twelve (12) months after the termination of Employee's employment with
the Company, solicit or influence or attempt to influence any person employed by
the Company to terminate or
otherwise cease his employment with the Company or become an employee of any
competitor of the Company.
9. Liability Insurance. The Company shall use reasonable efforts to
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obtain and maintain Directors' and Officers' Liability insurance, provided such
insurance is available to the Company at commercially reasonable rates as
determined by the Board of Directors.
10. Conflicts. Employee represents that his performance of all the terms
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of this Agreement will not breach any other agreement to which Employee is a
party. Employee has not, and will not during the term of this Agreement, enter
into any oral or written agreement in conflict with any of the provisions of
this Agreement.
11. Successors. Any successor to the Company (whether direct or indirect
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and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agrees expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee's rights hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. Miscellaneous Provisions.
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(a) Amendments and Waivers. Any term of this Agreement may be
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amended or waived only with the written consent of the parties.
(b) Sole Agreement; Termination of Prior Agreement. This Agreement
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(along with the Confidentiality Agreement) constitutes the sole agreement of the
parties and supersedes all oral negotiations and prior writings with respect to
the subject matter hereof. Without limiting the foregoing, the Prior Agreement
is hereby terminated in its entirety. The Confidentiality Agreement shall remain
in full force and effect.
(c) Notices. Any notice required or permitted by this Agreement
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shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of
the Agreement shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(f) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(g) Arbitration. Any dispute or claim arising out of or in
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connection with this Agreement will be finally settled by binding arbitration in
San Francisco, California in accordance with the rules of the American
Arbitration Association by one arbitrator appointed in accordance with said
rules. The arbitrator shall apply California law, without reference to rules of
conflicts of law or rules of statutory arbitration, to the resolution of any
dispute. Judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. Notwithstanding the foregoing, the parties
may apply to any court of competent jurisdiction for preliminary or interim
equitable relief, or to compel arbitration in accordance with this paragraph,
without breach of this arbitration provision. This Section 12(g) shall not apply
to the Confidentiality Agreement.
(h) Advice of Counsel. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
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THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
The parties have executed this Agreement as of the date first written
above.
AENEID CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Title:
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Address: 000 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXXXXX XXXXXX
Signature: /s/ Xxxxxxxx X. Xxxxxx
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Address:
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